9911796707
TMI Blog2003 (12) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... ee materials given in respect of each clearance to the date of final payment under Para 128 of the Handbook of Procedures 1992-97 specified under Para 16 of Import and Export Policy 1992-97. There is an order of confiscation of the goods in terms of Section 111(o) of the Customs Act and since the goods were not available for confiscation, there is imposition of fine of Rs. l lac. A penalty of Rs. 3 lakhs under Section 112(a) of the Customs Act has also been imposed. 2. The appellants were issued quantity based advance licence No. 34875, dated 24-5-93 by the Director General of Foreign Trade (DGFT), Hyderabad for export of 10,000 Kgs. of Ibuprofen with a condition that the goods imported against the aforesaid licence shall be utilised in ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period when the department investigated, they were not under the DEEC scheme as the export obligation had been fulfilled. It is their contention that Commissioner's order directing them to pay duty on the imported raw material and also to pay penalty does not arise. They submitted that as the circumstances were beyond their control, they had to sell the imported raw material to save it from damage/destruction. Hence their action was bona fide and no penalty was required to be imposed on them. 3. We have heard ld. Counsel Shri R. Ganesan and Shri A. Jayachandran, ld. DR. 4. Ld. Counsel pointed out that in a similar facts and circumstances, the Tribunal in the case of Dolphin Drugs Pvt. Ltd. v. CC, Madras, vide Final Order No. 73/98, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty was imposed. He submitted that this order of JDGFT should be taken into consideration and penalty should be waived in terms of the order of the Tribunal rendered in the case of Dolphin Drugs P. Ltd. v. CC (supra). He pointed out at the relevant time, 98% of the raw materials had been utilised for export purpose and the bond had been fulfilled by 13-9-94 but the show cause notice was issued on 9-5-95. Therefore, question of confiscating the goods and imposing fine and penalty does not arise even in the light of judgment of the Apex Court cited by ld. DR in the case of Western Components Ltd. v. Commissioner, 2000 (115) E.L.T. 278 (S.C.) as in that case the goods were released under bond and bond was still in existence. 5. Ld. DR relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment in Para 5 are noted herein below :- "5. We have carefully considered the pleas advanced by both the sides. While it is true that in the beginning only 8,200 Kgs. of IBUPROFEN was manufactured and exported and the remaining quantity out of the said raw material was manufactured and sold in the domestic but we observe that they have got relevant permission from the DGFT authorities to fulfil their export obligation by the extended time-limit of 31-5-95. The said export obligation has been duly fulfilled. It was duly recorded in Para 6.1 of the impugned order which has not been dealt with by the adjudicating authority at all. This was duly pointed out by the applicants/appellants herein in Para 3 of their reply to SCN. In view of exte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fine is set aside. 8. As regards imposition of penalty for having contravened terms of the notification, in disposing of the raw material, we notice that this is an admitted fact. The JDGFT has already imposed a penalty of Rs. 10,000/- after taking into consideration all the extenuating circumstances. The appellants have shown that they were compelled to sell the inputs in the domestic market to avoid contamination and total loss due to fire in the factory. We notice that appellants was required to have taken permission from the department before disposing of the raw material. To that extent there is laches on the part of the appellant. However, it does not call for imposition of penalty of Rs. 3 lakhs. In the overall facts and circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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